People of Michigan v. Jerome Jamal Duckwyler ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 29, 2022
Plaintiff-Appellee,
v No. 358566
Wayne Circuit Court
JEROME JAMAL DUCKWYLER, LC No. 19-003064-01-FC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals by leave granted1 his plea-based convictions of second-degree murder,
MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. Defendant was sentenced, under a plea agreement, to 33 to 60 years’
imprisonment for second-degree murder and two years’ imprisonment for felony-firearm. On
appeal, defendant argues that this Court should vacate his guilty plea and sentences because (1)
the trial court improperly denied his motion to withdraw the guilty plea when it made no finding
on his competency at the plea hearing, (2) his trial counsel was constitutionally ineffective, and
(3) his plea was not knowing, voluntary, or accurate. We affirm.
I. BACKGROUND
Defendant was charged on March 31, 2018, with one count of first-degree murder, MCL
750.316, and one count of felony-firearm. He was referred to the Forensic Center for a competency
evaluation in April 2018, and initially found incompetent. He was given treatment to restore his
competency, and at a competency hearing held in April 2019, defendant was found competent by
the district court, and he demanded a preliminary examination. At the preliminary examination,
defense counsel objected to the competency finding, but the trial court stated that based on the
parties’ previous stipulation to the most recent report finding defendant competent, it would go
1
See People v Duckwyler, unpublished order of the Court of Appeals, entered December 1, 2021
(Docket No. 358566).
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forward with the preliminary examination that day. Defendant was bound over for further
proceedings in the circuit court, and the court granted his request for an independent evaluation.
Defendant was referred to the Forensic Center for an updated competency evaluation in December
2019, and based on the report, the trial court found defendant competent without objection by the
defense on February 19, 2020.
At a subsequent pretrial hearing, defense counsel stated that, through negotiations with the
prosecution, they had agreed that defendant would plead guilty to second-degree murder with a
sentence of 33 to 60 years’ imprisonment and to felony-firearm with a sentence of two years’
imprisonment. However, the prosecution was unwilling to accept a no-contest plea because
defendant apparently could not recall the events at issue to make a factual basis . The trial court
ultimately offered the parties additional time to resolve this issue and set a date for the next
proceeding. At a final pretrial hearing, defense counsel stated that defendant was now willing to
plead guilty and prepared to make the necessary factual basis for doing so.
At defendant’s plea hearing, the court asked whether either counsel wanted to establish a
factual basis for defendant’s plea, which elicited the following exchange between defendant and
defense counsel:
Q. [Defendant], at [the time and location of the relevant events], were
you . . . in possession of a firearm?
A. Yes.
Q. And did you take—did you use that firearm with the intent to murder
someone?
A. Yes.
* * *
Q. Would [Michelle Briscoe (the victim)] be the person that you shot with
the firearm at that location?
A. Yes.
The prosecution then followed up by asking defendant, “did Michelle Briscoe die as a result of
you shooting her with that firearm?” to which he responded, “Yes.” The trial court concluded that
there was a factual basis to support defendant’s plea, and that the plea was “understanding,”
“voluntar[y],” and “accurate.” Defendant was sentenced according to the plea agreement, and the
prosecution dismissed the first-degree murder charge.
Following sentencing, and with new representation, defendant moved to withdraw his
guilty plea under MCR 6.310(C), arguing that his plea was not voluntarily or intelligently given
because, despite him previously being found competent to stand trial, there was never any finding
that he was criminally responsible or competent at the time of the plea. Defendant also argued that
his simple, affirmative responses to leading questions at the plea hearing were insufficient to
establish the required factual basis for his plea, especially considering he had already stated that
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he had no memory of the pertinent events. Additionally, defendant claimed that his prior trial
counsel was constitutionally ineffective for not pursuing a plea of guilty but mentally ill regarding
the second-degree murder charge and allowing defendant to simply plead guilty. For these
reasons, defendant requested that the trial court set aside his guilty plea and resulting sentences.
After a hearing on this issue, the trial court issued an opinion and order denying defendant’s
motion. The court concluded that the record lacked evidence that defendant was incompetent when
he pleaded guilty. Specifically, it noted that defendant coherently responded to questioning
regarding the plea and never displayed any erratic or inappropriate behavior, and that his counsel
never raised any concerns regarding competency at the plea hearing. The court stated further that
defendant’s affidavit (attached to his motion to withdraw the plea) merely demonstrated “a certain
‘buyer’s remorse,’ ” and was insufficient to contradict his statements under oath at the plea hearing
confirming that he understood the plea agreement’s terms, had ample opportunity to consult with
counsel, and had no further questions for counsel. The court did not specifically address
defendant’s claim that his simple answers to leading questions provided an insufficient basis on
which to accept the plea, but it did state that the record clearly reflected that defendant made his
plea knowingly, intelligently, and voluntarily.
The trial court also concluded that defendant’s prior counsel was not ineffective, reasoning
that defendant failed to show that the result of the proceedings would have been different had he
pleaded guilty but mentally ill (i.e., he failed to show prejudice). It also stated that, in any event,
defendant’s counsel was effective regarding the plea because the prosecution never even offered
to accept a guilty-but-mentally-ill plea. This appeal followed.
II. STANDARDS OF REVIEW
“When a motion to withdraw a guilty plea is made after sentencing, the decision whether
to grant it rests within the sound discretion of the trial court,” and it “will not be disturbed on
appeal unless there is a clear abuse of discretion resulting in a miscarriage of justice.” People v
Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995); see also People v Coleman, 327 Mich App
430, 443; 937 NW2d 372 (2019). The determination of a defendant’s competence is also within
the trial court’s discretion, and will only be reversed when there is an abuse of that discretion.
People v Kammeraad, 307 Mich App 98, 138; 858 NW2d 490 (2014). An abuse of discretion
occurs “when the trial court’s decision is outside the range of reasonable and principled outcomes.”
Id. at 140 (quotation marks and citation omitted).
Whether a defendant was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law. People v Heft, 299 Mich App 69, 80; 829 NW2d 266(2012). Findings of fact are reviewed for clear error, and questions of law are reviewed de novo.
Id. However, because no Ginther2 hearing was conducted in the trial court, our review is limited
to errors apparent from the record. People v Abcumby-Blair, 335 Mich App 210, 227: 966 NW2d
437 (2020).
2
See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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III. ANALYSIS
Defendant first argues that this Court should vacate his guilty plea and sentences because
the trial court improperly denied his motion to withdraw the guilty plea when it made no explicit
finding on his competency at the initial plea proceeding. We disagree.
Following sentencing, a guilty plea may only be withdrawn if “there was an error in the
plea proceeding that would entitle the defendant to have the plea set aside.” MCR 6.310(C)(3).
Stated differently, the defendant must show some “defect in the plea-taking process.” People v
Brown, 492 Mich 684, 693; 822 NW2d 208 (2012).
An incompetent defendant “shall not be proceeded against while he is incompetent.” MCL
330.2022(1). “[A] defendant is presumed competent to stand trial unless his mental condition
prevents him from understanding the nature and object of the proceedings against him or the court
determines he is unable to assist in his defense.” People v Mette, 243 Mich App 318, 331; 621
NW2d 713 (2000), citing MCL 330.2020. Moreover, “[a] defendant must be competent in order
to plead guilty.” People v Whyte, 165 Mich App 409, 411; 418 NW2d 484 (1988).3 Competency
to plead guilty is evaluated under the same standard as competency to stand trial. People v
Matheson, 70 Mich App 172, 180; 245 NW2d 551 (1976). Either the court or any party may raise
the issue of a defendant’s competence. MCL 330.2024. And as stated, the determination of a
defendant’s competence is within the lower court’s discretion. Kammeraad, 307 Mich App at 138.
However, a trial court has an independent duty to raise the issue of competency and order
an evaluation when “facts are brought to its attention which raise a ‘bone fide doubt’ as to the
defendant’s competence.” Id. (quotation marks and citation omitted).
[T]he test for such a bona fide doubt is whether a reasonable judge, situated
as was the trial court judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to competency to stand trial.
Evidence of a defendant’s irrational behavior, a defendant’s demeanor, and a
defendant’s prior medical record relative to competence are all relevant in
determining whether further inquiry in regard to competency is required. There
are, of course, no fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is often a difficult one
in which a wide range of manifestations and subtle nuances are implicated. [Id. at
138-139 (quotation marks and citations omitted; alteration in original).]
Relatedly, because competency is an ongoing matter, “a trial court must recognize its obligation
to render a separate finding of competence where a plea is offered and the record provides
3
“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),
they nevertheless can be considered persuasive authority.” In re Stillwell Trust, 299 Mich App
289, 299 n 1; 829 NW2d 353 (2012) (citation omitted).
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significant evidence of possible incompetence.” Whyte, 165 Mich App at 414, citing Matheson,
70 Mich App at 179 (quotation marks omitted).4
Defendant claims that his guilty plea and resultant sentences should be vacated because the
trial court never explicitly reevaluated his competency at the plea hearing, which he argues was
lacking. He first asserts that when a defendant is taking psychotropic medication, as he was here,
the court must take additional steps to ensure competency before allowing a guilty plea, which it
allegedly failed to do. For support, defendant cites Miles v Stainer, 108 F3d 1109, 1112-1113 (CA
9, 1997) (granting the defendant habeas corpus relief for the trial court’s failure to ensure that the
defendant was taking his medications before accepting the guilty plea when the record contained
explicit warnings that the defendant’s competency “depended on medications which he often
refused to take”).5
Defendant argues further that there existed sufficient evidence of possible incompetence
on the record that the trial court was required to explicitly reevaluate his competence at the plea
hearing before accepting the guilty plea. He specifically notes repeated references in the record to
his history of mental disorders and the court’s notice that he was taking psychotropic medications.
Defendant likens his case to Matheson, where the defendant had previously been found competent
(similar to the instant case), but the Court nevertheless vacated his plea, in part, because its own
review of the record revealed significant indications of incompetence during the plea proceedings.
See Matheson, 70 Mich App at 184. Defendant also relies on Whyte, where this Court remanded
to determine the competency of a defendant who earlier pleaded guilty because his presentence
investigation report revealed he was admitted to an in-patient psychiatric facility just two days
after the incident leading to his conviction and had a long history of mental illness, including
schizophrenia, paranoia, depression, delusion, and hallucination. See Whyte, 165 Mich App
at 412-414.
While acknowledging the court’s earlier finding that he was competent to stand trial,
defendant claims this result was not dispositive given the ongoing nature of the issue and his
alleged evidence of incompetency. Accordingly, defendant argues that “the totality of
circumstances indicate[s] that [he] was not competent to plead guilty and his guilty plea was not
knowingly made.” Defendant also provides a single sentence in his argument on the competency
issue stating, “Also, a review of [the August 31, 2020 pretrial hearing transcript] reveals that
4
Whyte and Matheson, while relied on by defendant, are not precedentially binding on this Court.
See MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow the rule of law established
by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that
has not been reversed or modified by the Supreme Court, or by a special panel of the Court of
Appeals as provided in this rule.”). But while the rules cited in the main text from these cases do
not appear to ever have been reaffirmed in any post-November 1, 1990 published decisions, they
were cited approvingly in at least one unpublished case in 2009. See People v Bell, unpublished
per curiam opinion of the Court of Appeals, issued March 19, 2009 (Docket No. 282545), p 3.
5
We note that this is a Ninth Circuit decision and is thus not binding on this Court. See Abela v
Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004) (“Although lower federal court
decisions may be persuasive, they are not binding on state courts.”).
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[defendant] could not recall the events, belying any claim of voluntariness.” We construe this brief
comment on defendant’s lack of memory, given its inclusion under this issue, as further
demonstrating—according to defendant—his lack of competency at the plea hearing.
We conclude that the trial court did not abuse its discretion by failing to explicitly
reevaluate defendant’s competency at the plea hearing and later denying defendant’s motion to
withdraw the plea. Based on the record, the court’s determination that defendant was capable of
understanding the nature of the charges brought against him and capable of rationally assisting in
his defense was not outside the range of reasonable and principled outcomes.
As an initial matter, the three cases on which defendant primarily relies are merely
persuasive, as one is a federal circuit case from another jurisdiction and two are cases from this
Court decided before November 1990. Nevertheless, these cases are distinguishable from the
instant facts. First, Stainer, while vacating the defendant’s plea because the trial court failed to
confirm whether he was taking certain medications, only did so because the record contained
“warnings that [the defendant’s] competence depended on medication which he often refused to
take.” Stainer, 108 F3d at 1112. But here, there are no facts showing that defendant’s medication
had any particular impact on his competency, so this fact alone did not warrant any additional
inquiry into the issue. Regarding Matheson, the defendant there, unlike defendant in the instant
case, “appeared confused and had to be continually prompted and led by the judge and by his
attorney.” Matheson, 70 Mich App at 184. And in Whyte, the defendant was never explicitly
determined to be competent to plead when, following the guilty plea, new facts were revealed
showing significant evidence of possible incompetence. Whyte, 165 Mich App at 412-414.
Here, in contrast to Matheson, and as the trial court recognized at defendant’s motion
hearing, he was responsive during the plea proceedings and never exhibited any erratic behavior
or confusion to indicate incompetence. Notably, defendant took initiative to independently clarify
the court’s meaning during their colloquy on his appellate rights, further demonstrating his
competence at that time. Furthermore, unlike the new information revealed in Whyte, defendant’s
alleged significant evidence of possible incompetence are facts that were all previously considered
when defendant underwent his latest competency evaluation and was then found competent to
stand trial. Nor did defendant’s trial counsel ever raise competence as an issue at the plea hearing.
Moreover, this Court should generally defer to the trial court’s superior ability to consider
defendant’s conduct. Under these circumstances, it was within the trial court’s discretion to
proceed with the plea hearing without explicitly reevaluating defendant’s competency. We agree
with the prosecution that defendant cannot now refute (via the later-filed affidavit) his sworn
testimony provided at the plea hearing, which clearly showed defendant’s apparent recollection of
and involvement in the relevant events. See People v White, 307 Mich App 425, 430; 862 NW2d
1 (2014) (when a plea is entered according to the relevant court rules, a trial court cannot consider
testimony or affidavits inconsistent with statements made during the plea hearing).
In sum, the trial court did not abuse its discretion by implicitly finding defendant competent
to plead guilty because (1) it explicitly found him competent to stand trial during the earlier
February 2020 pretrial hearing; (2) defendant appeared responsive, understanding, and engaged at
the plea hearing, showing no outward signs of incompetence; and (3) defendant’s alleged
significant evidence of potential incompetence were facts known to the trial court at the February
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2020 hearing. Therefore, the trial court did not abuse its discretion by denying defendant’s motion
to withdraw the guilty plea, at least concerning the issue of competency.
Next, defendant argues that this Court should vacate his guilty plea and sentences because
his trial counsel was constitutionally ineffective. We disagree.
To show ineffective assistance of counsel, a defendant must prove (1) that counsel’s
performance was deficient and (2) that the deficiency prejudiced the defendant. People v
Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). Defendant must also overcome a presumption
that any challenged action could be considered sound trial strategy. People v Hoag, 460 Mich 1,
6; 594 NW2d 57 (1999). In reviewing a claim of ineffective assistance of counsel related to a
guilty plea, this Court focuses on whether the plea was made voluntarily and understandably.
People v Haynes, 221 Mich App 551, 558; 562 NW2d 241 (1997). This depends not on whether
counsel’s advice was right or wrong, but on whether the advice was “within the range of
competence demanded of attorneys in criminal cases.” Id. Finally, defendant bears the burden of
establishing the factual basis of his ineffective assistance claims. People v Douglas, 496 Mich
557, 592; 852 NW2d 587 (2014).
Defendant argues that his trial counsel was ineffective for “pleading [him] guilty”6 rather
than guilty but mentally ill. According to defendant, his trial counsel “could have entered [this
type of] plea,” which would have assured him mental health treatment, whereas his guilty plea did
not. Defendant specifically claims that, given trial counsel’s notice of his mental condition, there
was no sound strategy for the failure to “tender” a plea of guilty but mentally ill. And defendant
argues that the prejudice prong is satisfied because a plea of guilty but mentally ill would have
impacted his sentencing by requiring further mental health evaluation and treatment. But with his
guilty plea, defendant asserts that he will likely receive no treatment, with a longer sentence and
him “emerg[ing from prison] no better than . . . when he entered.”
We conclude that defendant’s ineffective assistance claim is barred by our Supreme
Court’s decision in People v Lloyd, 459 Mich 433; 590 NW2d 738 (1999). In Lloyd, id. at 451,
which involved a jury trial as opposed to a guilty plea, the Court stated that “a person found
guilty . . . but mentally ill[] still must serve [the same sentence].” Accordingly, the Court
concluded that “failure [of counsel] to obtain [a verdict of guilty but mentally ill] would scarcely
constitute prejudice to the defendant.” Id. While a plea of guilty but mentally ill would, as the
parties acknowledge, grant defendant some additional rights regarding mental health treatment, it
would not have actually impacted defendant’s sentence. Thus, even if trial counsel’s failure to
pursue such a plea was deficient performance, it was not prejudicial, and, therefore, his ineffective
assistance claim fails.
6
Though this is how defendant’s argument is phrased, a more accurate description of this question
is whether defendant’s trial counsel was ineffective for advising him to plead guilty, considering
defendant himself consistently reaffirmed his desire to plead guilty at the plea hearing after stating
he had sufficiently consulted with trial counsel on the matter.
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Regardless, defendant cannot show that a plea of guilty but mentally ill was even available
to him. According to MCL 768.36(2), a plea of guilty but mentally ill is available under the
following circumstances:
If the defendant asserts a defense of insanity in compliance with section 20a
of this chapter and the defendant waives his or her right to trial, by jury or by judge,
the trial judge, with the approval of the prosecuting attorney, may accept a plea of
guilty but mentally ill in lieu of a plea of guilty or a plea of nolo contendere. The
judge shall not accept a plea of guilty but mentally ill until, with the defendant’s
consent, the judge has examined the report or reports prepared in compliance with
section 20a of this chapter, the judge has held a hearing on the issue of the
defendant’s mental illness at which either party may present evidence, and the judge
is satisfied that the defendant has proven by a preponderance of the evidence that
the defendant was mentally ill at the time of the offense to which the plea is entered.
The reports shall be made a part of the record of the case. [Emphasis added.]
Critically, defendant never asserted any insanity defense below, nor does he assert this as an issue
on appeal. Furthermore, defendant presents no evidence that a guilty-but-mentally-ill plea was
ever considered by or amenable to the prosecution. Because such facts are necessary for a
defendant to plead guilty but mentally ill, but absent from this case, defendant’s claim of prejudice
cannot prevail.
Lastly, defendant argues that this Court should vacate his guilty plea and sentences because
his plea was not knowing, voluntary, or accurate.7 We disagree.
As stated earlier, following sentencing, a guilty plea may only be withdrawn if the
defendant can show some “defect in the plea-taking process.” Brown, 492 Mich at 693. MCR
6.302 provides the particular guidelines under which a court may accept a guilty plea. MCR
6.302(A) provides that “[t]he court may not accept a plea of guilty . . . unless it is convinced that
the plea is understanding, voluntary, and accurate.” Accordingly, the defendant must “be informed
of the consequences of his or her plea and, necessarily, the resultant sentence.” Brown, 492 Mich
at 693. To ensure compliance with these requirements, the trial court, before accepting a guilty
plea, “must place the defendant or defendants under oath and personally carry out subrules (B)-
(E).” MCR 6.302(A).
7
While defendant’s issue presented states that his guilty plea was “not knowing” and
“involuntary,” and that the trial court did not meet the “requirements regarding an accurate plea,”
his actual argument only substantively addresses the plea’s accuracy—specifically, the trial court’s
alleged failure to sufficiently establish a factual basis for accepting the plea. Furthermore, though
defendant’s issue presented also notes his apparent lack of recollection of the relevant events as
relevant to the accuracy (or lack thereof) of defendant’s plea, there is little mention of this fact in
the main text of the issue. And defendant provides no actual argument as to why this is relevant
to the accuracy of his plea as determined at the plea hearing. In any event, as discussed earlier,
defendant may not now refute his sworn statements from the plea hearing indicating he did have
sufficient memory of the events. See White, 307 Mich App at 430.
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Defendant claims that his guilty plea should be withdrawn, specifically, because the trial
court failed to question him to establish the necessary factual basis for the plea under MCR
6.302(D)(1). According to defendant, the language therein specifically contemplates that such
questioning be done by the court, which did not occur here. Defendant further criticizes the
questioning that did occur (from his trial counsel and the trial prosecutor) to purportedly establish
a factual basis for his plea because it consisted entirely of simple, affirmative responses to leading
questions, with absolutely no factual detail provided by defendant himself. Defendant relies on
People v Barrows, 358 Mich 267; 99 NW2d 347 (1959), superseded by rule as stated in People v
Jackson, 465 Mich 390; 633 NW2d 825 (2001), and People v Atcher, 57 Mich App 148; 226
NW2d 77 (1974), as requiring such direct questioning of, and detailed factual elicitation from, a
defendant. Defendant also cites In re Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), as
further supporting a requirement for the trial court to conduct a detailed questioning of the
defendant when establishing a guilty plea’s factual basis.
MCR 6.302(D)(1) provides, “If the defendant pleads guilty, the court, by questioning the
defendant, must establish support for a finding that the defendant is guilty of the offense charged
or the offense to which the defendant is pleading.” In Barrows, the Michigan Supreme Court held
that “direct questioning of a defendant by the trial judge on plea of guilty is required by the
[predecessor to MCR 6.302] for the purpose of establishing the crime and the participation therein
of the person pleading guilty,” i.e., for the purpose of establishing a factual basis for the plea.
Barrows, 358 Mich at 272 (emphasis added). Therefore, despite the prosecution’s argument
otherwise, this case does appear to require direct questioning by the trial court in establishing a
guilty plea’s factual basis, not just when accepting a plea generally. But the Court later retreated
from such a definite requirement of direct questioning in People v Carlisle, 387 Mich 269; 195
NW2d 851 (1972):
We reaffirm our holding in Barrows. No plea of guilty should be accepted
by a trial judge until facts sufficient to establish the defendant’s guilt have been set
out in the record. Preferably, these facts should be brought forth through a direct
examination of the accused by the trial judge at the time the plea of guilty is
accepted. [Id. at 273 (emphasis added).]
And the Court elaborated on the flexibility of this determination in People v Kuchulan, 390
Mich 701; 213 NW2d 95 (1973). While not the main issue in that case, the Court concluded that
the failure to establish via direct questioning the existence of a crime and the defendant’s
participation therein did not warrant vacating his guilty plea. Id. at 705-706. In particular, the
Court concluded that previously-presented evidence allowed the trial court “to make a ‘reasonable
ascertainment of the truth of the plea’ ” without any direct questioning of the defendant. Id. at 706,
quoting Barrows, 358 Mich at 272. See also People v Armstrong, 390 Mich 693, 698-699; 213
NW2d 190 (1973), quoting Barrows, 358 Mich at 272 (“We are of the opinion that where the judge
has heard testimony at trial implicating the defendant[, the judge] is in a position to make a
‘reasonable ascertainment of the truth of the plea’ ”); but see People v Schneff, 392 Mich 15, 24-
26; 219 NW2d 47 (1974) (stating that the “preference” for direct questioning of a defendant from
Carlisle has, effectively, “been a requirement in most situations,” and holding that a trial court
must “derive the factual basis for a guilty plea directly from [the] defendant or through testimony
developed at a full adversarial trial”).
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Then, in 1975, the Court decided Guilty Plea Cases, 395 Mich 96. This decision, however,
was specific to no-contest, not guilty, pleas. See id. at 132-134. And though this case did comment
on procedures relating to guilty pleas, it does not support defendant’s contention that direct
questioning from the trial court was required for establishment of the plea’s factual basis. See id.at 134 n 3 (“Direct questioning is not an absolute. . . . [W]here the judge makes a conscientious
effort to establish a factual basis for a plea of guilty by direct questioning of the defendant,
omissions in the record recital of the factual basis may be established in some other manner.”).
At the same time, this Court has consistently held that leading questions are permissible in
establishing the factual basis for a guilty plea. See People v Byrd, 12 Mich App 186, 192; 162
NW2d 777 (1968) (“The assignment of error that attempts to raise an issue from the use of leading
questions by the trial court in an examination which is in accord with [the predecessor to MCR
6.302], is devoid of merit and necessitates no further amplification here.”); People v Watson, 28
Mich App 587, 588-589; 184 NW2d 476 (1970) (although “[b]oth defendants claim the trial court
erred in its examination pursuant to [the predecessor to MCR 6.302] because all of the elements
of the offense charged were established not in [the defendants’] own words, but through ‘yes’
answers to leading questions propounded by the court,” this was allowed under Byrd); People v
Green, 123 Mich App 563, 567-568; 332 NW2d 610 (1983) (distinguishing Atcher and allowing
leading questions to establish a factual basis for the defendant’s guilty plea because “the present
case present[ed] more than just the legal determination based on three questions as in Atcher” and
“[a] reasonable jury could have drawn an inculpatory inference from [the questions elicited].”);
People v Botzen, 151 Mich App 561, 565; 391 NW2d 410 (1986) (“While the better practice at a
plea proceeding would be the use of nonleading questions, we believe that there was a sufficient
factual basis for defendant’s guilty plea.”). In Watson, this Court stated that “the form and manner
for conducting the examination required by [the predecessor to MCR 6.302] has been left to the
discretion of the trial judge.” Watson, 28 Mich App at 589.
Following these authorities, we conclude that the trial court did not abuse its discretion by
the procedure taken to establish the factual basis for defendant’s plea—specifically, by eliciting
the relevant facts through leading questions asked by defendant’s trial counsel and the trial
prosecutor. The court explicitly directed trial counsel and the trial prosecutor to elicit the factual
basis for defendant’s plea, with that testimony establishing sufficient facts for the trial court to
“reasonabl[y] ascertain[] the truth of the plea.” See Barrows, 358 Mich at 272. With the form and
manner of questioning being left to the trial court’s discretion, this procedure does not warrant
vacating defendant’s plea.
We also disagree with defendant that Atcher is in any way relevant or helpful to his claim.
While Atcher did involve leading questions from the court in attempting to establish a factual basis
for the defendant’s guilty plea, this was not the basis for this Court vacating the plea. See Atcher,
57 Mich App at 151. Rather, the Court merely concluded that “[the d]efendant’s affirmative
response[s] required him to make a legal determination which should have been made by the trial
judge after eliciting proper facts regarding commission of the crime charged.” Id. No such legal
determinations were at issue in this case.
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Affirmed.
/s/ Amy Ronayne Krause
/s/ Kathleen Jansen
/s/ Brock A. Swartzle
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